TRANSPLANTS

Advances in medical knowledge and technology have made possible the transplantation of organs from a deceased (or, in the case of some organs such as a kidney, from a living) person into another individual stricken with disease, and this technological advance reached an acme with the transplantation of a human heart. Such operations raised many moral, theological, legal, social, and philosophical problems.

With regard to the general permissibility, Rabbi I. *Jakobovits is of the opinion that a donor may endanger his life or health to supply a "spare" organ to a recipient whose life would thereby be saved, only if the probability of saving the recipient's life is substantially greater than the risk to the donor's life or health. This principle is applicable to all organ transplantation where live donors are used as a source of the organ in question. Rabbi Y. Waldenberg (Responsa Ẓiẓ Eliezer, 9 (1967), no. 45) discusses at length the question of whether a healthy person may or must donate one of his organs to save the life of another. The majority opinion seems to be that a small risk may be undertaken by the donor if the chances for success in the recipient are substantial.

Most of the rabbinic responsa literature concerning organ transplantation deals with eye (cornea) transplants. The basic halakhic principles governing eye transplants, however, are applicable to nearly all other organ transplants. Kidney and heart transplants involve several additional unique questions. The classic responsum is that of Rabbi I.Y. *Unterman (Shevet mi-Yhudah (1955), 313ff.) who states that the prohibitions on deriving benefit from the dead, desecrating the dead, and delaying the burial of the dead are all set aside because of pikku'aḥ nefesh – the consideration of saving life. These prohibitions would remain if there is no threat to life involved in the condition for the treatment of which the transplant is being done. For example, there is no pikku'aḥ nefesh involved in a nose transplant. Rabbi Unterman considers eye transplants to involve pikku'aḥ nefesh because blindness is a situation in which a person so afflicted may fall down a flight of stairs or into a ditch and be killed. What of a person blind in one eye? The concept of pikku'aḥ nefesh does not apply. However, argues Rabbi Unterman, once the donor eye is implanted into the recipient, it is not considered dead but a living organ. Thus, the prohibitions on deriving benefit from the dead and delaying burial of the dead are not applicable since no dead organ is involved. For the same reason, the problem of ritual defilement or tumah is nonexistent, in regard to the transplanted eye. Rabbi J.J. Greenwald (Kol Bo al Avelut, 1 (1947), 45ff.) presents reasoning from which the conclusion can be drawn that one may not remove the entire eye from a deceased donor for transplantation; only the cornea may be used since a whole eye represents flesh whereas the cornea alone is considered skin. Furthermore, one cannot overcome the problems of desecrating and delaying burial of the dead without invoking the concept of pikku'aḥ nefesh. Thus, Rabbi Greenwald, as most authorities, would only permit eye grafts for a person blind in both eyes. Rabbi I. Glickman (No'am, 4 (1961), 206–17) added to Rabbi Unterman's theses described above that one may perform a transplant only if the donor gave permission prior to his death. Most rabbinic responsa agree with this requirement.

The problem of eye banks is raised by Rabbi M. Steinberg (No'am, 3 (1960), 87ff.). Since the permissibility of organ transplants rests primarily on the overriding consideration of pikku'aḥ nefesh, then it would seem that the recipient would have to be at hand (lefaneinu). Rabbi Steinberg states that since the number of blind persons is so large, a recipient is considered to be always at hand. Rabbi Jakobovits also permits organs or blood to be donated for deposit in banks provided there is a reasonable certainty that they will eventually be used in life-saving operations including the restoration or preservation of eyesight. Rabbi Unterman, at the end of his remarks on eye transplants, also states that donations to blood banks are permissible.

The question of whether the eye of a non-Jewish donor may be used for an eye transplant is raised by Rabbi M. Feinstein (Iggerot Moshe, pt. Yoreh De'ah (1959), no. 229). He draws the conclusion that it is permissible for a Jew to use the eye of a gentile donor.

Kidney transplants are governed by the same principles as those discussed above for eye transplants. In fact, many of the responsa deal with both eye and kidney transplants. In addition to cadaver kidneys, kidneys from live donors are used for transplantation. Here, new halakhic questions arise. Is the donor allowed to subject himself to the danger, however small, of the operation to remove one of his kidneys in order to save the life of another? Does the donor transgress the commandments to "take heed to thyself" (Deut. 4:9 and 4:15)? The Shulḥan Arukh and Maimonides in the Yad answer this question by stating as follows: "The Jerusalem Talmud concludes that one is obligated to put oneself even into a possibly dangerous situation [to save another's life]." The reason seems to be that the death of the sick person (i.e., the kidney recipient) without intervention is a certainty, whereas his (the donor's) death is only a possibility.

With regard to heart transplantations, medical and ethical guidelines have been established. Recommendations include the requirements that the surgical team shall have had extensive laboratory experience in cardiac transplantation, that death of the donor shall be certified by an independent group of physicians, and that the information and knowledge gained should be rapidly disseminated to the medical world.

From the halakhic point of view, the prohibitions dealing with desecrating the dead, delaying burial of the dead, and ritual defilement, are all set aside in the case of human heart transplantation, for the overriding consideration of pikku'aḥ nefesh, saving a life. The major halakhic problem remaining is the establishment of the death of the donor. Prior to death, the donor is in the category of a gosses (hopelessly ill patient) and one is prohibited from touching him or moving him or doing anything that might hasten his death. There are many types of death: mental death when a person's intellect ceases to function; social death when a person can no longer function in society; spiritual death when the soul leaves the body; and physiological or medical death. The Jewish legal or halakhic definition of death is that a person who has stopped breathing and whose heart is not beating is considered dead. This classic definition of death in the Talmud (Yoma 8:6–7; Yoma 85a; TJ, Yoma 8:5, 45a and Maimonides, Yad, Shabbat 2:19; Sh. Ar., OḤ 329:4) would be set aside if prospects for resuscitation of the patient, however remote, are deemed feasible.

On the assumption that the donor is absolutely and positively dead, most rabbinic authorities permit heart transplants. Rabbi Jakobovits has stated that "…in principle, I can see no objection in Jewish law to the heart operations recently carried out, provided the donors were definitely deceased at the time the organ was removed from them." Rabbi I. Arieli is also quoted as having said that heart transplants are permissible if the donor is definitely dead, but only with the family's consent. A similar pronouncement was made by Rabbi D. Lifshutz. Rabbi Unterman's published responsum (No'am, 13 (1970), 1–9) dealing specifically with heart transplants begins by stating that consent from the family of the donor must be obtained for several reasons. Touching briefly on the problem of organ banks, he states that freezing organs for later use is allowed provided there is a good chance that they will be used to save a life. Then the situation would be comparable to having the recipient at hand (lefaneinu). Rabbi Unterman concludes with the novel pronouncement that in the case of a human heart transplant recipient, removing the patient's old heart takes from him his hold on life (ḥezkat ḥayyim). Therefore, the removal of the recipient's heart can be sanctioned only if the risk of death resulting from the surgery is estimated to be smaller than the prospect for lasting success.

Dissenting from Rabbi Unterman's permissiveness toward heart transplants under the conditions described above is Rabbi J. Weiss who strongly condemns cardiac transplants as double murder (Ha-Ma'or, 20 (1968), no. 7, 1–9). Rabbi Feinstein also added his voice to those condemning heart transplants (Ha-Pardes, 43 (1969), no. 5). Careful reading of his lengthy responsum on this subject discloses the following clarification of his position: if the donor is definitely dead by all medical and Jewish legal criteria, then no murder of the donor would be involved and the removal of his heart or other organ to save another human life would be permitted. Concerning the recipient, he wrote at the time, when medical science will have progressed to the point where cardiac transplantation becomes an accepted therapeutic procedure with reasonably good chances for success, then the recipient shall no longer be considered murdered. Major obstacles such as organ rejection, tissue compatibility testing, and immunosuppressive therapy must be first overcome. Other responsa on cardiac transplantation are those of Rabbi S. *Goren (Maḥanayim, 122 (1969), 7–15), Rabbi Y. Gershuni (Or Ha-Mizraḥ, April 1969), Rabbi D.C. Gulewski (Ha-Maor, 21 (1969), no. 1, 1–16), Rabbi M. *Kasher (No'am, 13 (1970), 10–20), and Dr. J. Levi (No'am, 12 (1969), 289–313). The major concern of most, if not all, rabbis attempting to render legal rulings in heart transplant cases is the establishment of the death of the donor.

For a full legal discussion with later rulings, see *Medicine and the Law.